Page:Fair Circumvention.djvu/1

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ARTICLES



Fair Circumvention


Timothy K. Armstrong[†]

I. Introduction

When copyrighted works are published in digital form, publishers may seek to prevent copyright infringements by embedding technological protections into the published content. Publishers have a statutory incentive to deploy such technological protection measures (commonly referred to as “digital rights management” or “DRM” systems), for if they do, they may avail themselves of the protections of the Digital Millennium Copyright Act of 1998 (“DMCA”).[1] The DMCA forbids circumventing, or trafficking in devices that circumvent, technological measures that protect copyrighted works.[2] This statutory prohibition on circumventing technological protection measures supplies


^ Assistant Professor of Law, University of Cincinnati College of Law. B.A. 1989, M.P.Aff. 1993, J.D. 1993, The University of Texas at Austin; LL.M. 2005, Harvard Law School. I presented earlier versions of this paper at the 2008 Intellectual Property Scholars Roundtable at Drake University Law School and in a faculty colloquium at the Chicago-Kent School of Law. For helping me improve my thinking about the subjects considered herein, I am indebted to Derek Bambauer, William McGeveran, and Wendy Seltzer, none of whom bears responsibility for any errors in my analysis. Research support from the Harold C. Schott Foundation is gratefully acknowledged, as is the research assistance of Jeffrey Nye and Christopher St. Pierre.

Copyright © 2008, Timothy K. Armstrong. This work is licensed under the Creative Commons Attribution-Share Alike 3.0 United States license. To view a copy of this license, visit http://creativecommons.org/licenses/by-sa/3.0/us/, or send a letter to Creative Commons, 171 2nd Street, Suite 300, San Francisco, California, 94105, USA. For purposes of Paragraph 4(c) of said license, proper attribution must include the name of the original author and the name of the Brooklyn Law Review as publisher, the title of the Article, the Uniform Resource Identifier, as described in the license, and, if applicable, credit indicating that the Article has been used in a derivative work.

  1. Pub. L. No. 105-304, 112 Stat. 2360 (1998) (codified as amended in scattered sections of 17 U.S.C.).
  2. 17 U.S.C. § 1201(a)(1)(A), (a)(2), (b)(1) (2006). See infra notes 17-32 and accompanying text. Such legal protections against circumvention are conventionally believed to be necessary because of the impossibility of engineering technological protection measures that are strong enough to withstand attack by sophisticated users in all cases. See, e.g., Competition, Innovation, and Public Policy in the Digital Age: Hearing Before the S. Comm. on the Judiciary, 107th Cong. 2 (statement of Edward W. Felten, Associate Professor of Computer Science, Princeton University), available at http://felten.com/felten_testimony.pdf (declaring “unbreakable” technological protections to be “as implausible to many experts as a perpetual motion machine”); Pamela Samuelson, DRM {and, or, vs.} the Law, Comm. of the ACM, Apr. 2003, at 41, 42-43.